Victra General Purchase Order Terms and Conditions

  These Purchase Terms and Conditions (“Terms”) govern the purchase by ABC Phones of North Carolina, Inc. d/b/a Victra (“Victra”) of goods (“Goods”) and/or services (“Services”) from any supplier, vendor, contractor, or service provider (“Supplier”). These Terms apply to and are incorporated into each purchase order, service request, statement of work, invoice, or other purchasing document issued by or accepted by Victra (each, an “Order”).

 

1. APPLICATION OF TERMS. The Supplier shall deliver Goods and/or perform the Services as described in this Order in accordance with these Terms. Additional or different terms in Supplier’s acknowledgement or any other Supplier documents, including without limitation, on Supplier’s invoices, are hereby rejected.  This Order is non-exclusive and Customer is free to engage others to provide goods the same as or similar to Supplier’s.
2. CANCELLATION OR CHANGE OF ORDER. Customer reserves the right to cancel this Order at any time after Supplier’s acceptance but prior to shipment of the Goods or performance of the Services and shall not be subject to any charges or other fees as a result of such cancellation.  Customer may by written communication cancel or make changes to this Order subject to an equitable adjustment in the price, delivery schedule, or both, where appropriate.
3. PRICES AND TAXES. Prices or fees specified in this Order will be inclusive of sales, use, excise, or other similar taxes (“Taxes”) and all freight, insurance and packing charges (“Other Fees”) that are to be paid by Customer.  Such Taxes and Other Fees must be separately itemized on the Supplier’s invoice to Customer.  Supplier warrants that the prices or fees shown in this Order shall be complete, that no additional charges shall be added without Customer’s express written consent, and the prices or fees quoted are no greater than those currently charged any other buyer for similar quantities of Goods or Services.  Any price reduction extended to others by Supplier prior to delivery shall also be extended to Customer.
4. PAYMENT TERMS AND INVOICES. As full consideration for the delivery of Goods and/or performance of the Services and the assignment of rights to Customer as provided herein, Customer shall pay Supplier the amount specified in this Order in US dollars.  The Supplier shall submit invoices showing this Order number, description of Goods, quantity, unit prices, extended totals, completion date of Services (if any), shipping date, Goods and/or Services delivery location, product serial numbers and any other information requested by Customer.  All properly submitted and undisputed invoices will be paid within sixty (60) days of the date the invoice is received by Customer, unless otherwise agreed in writing between the Parties. Payment of any invoice shall not constitute acceptance of any Goods or performance of Services.  An invoice may be rejected for noncompliance with any terms and conditions.  The mode of payment shall be at Customer’s sole discretion and all bank charges or back charges relating thereto shall be borne by Supplier.  Supplier shall continue performing its obligations under this Order notwithstanding any invoice dispute. Supplier invoices are accepted for payment purposes only. Any terms stated in or referenced by an invoice shall be void and of no effect and shall not amend or supplement these Terms.
5. SHIPPING, DELIVERY AND ACCEPTANCE. Subject to the Terms herein, shipment or delivery of Goods shall be DDP Supplier’s, location Incoterms 2020, unless otherwise specified in the Order. If Supplier does not, or it appears that Supplier will not, meet such schedules, then Customer may require that Supplier ship the Goods via expedited routing to meet the schedule or to recover the time lost and Supplier shall pay the difference in shipping costs.  Supplier shall bear the risk of loss or damage to the Goods covered by this Order until they are delivered to and accepted by Customer.  Goods purchased and Services provided under this Order are subject to Customer’s reasonable inspection, testing, and approval at Customer’s destination.  Customer reserves the right to reject and refuse acceptance of Goods or Services that are not in accordance with this Order or Supplier’s representation and warranties, expressed or implied.  Customer will charge Supplier for the cost of inspecting rejected Goods and Services.  Title to Goods passes to Customer upon Customer’s acceptance and payment of the Goods.  Rejected Goods may be returned to Supplier, or held by Customer, at Supplier’s risk and expense.  Rejected Services may be re-performed by Supplier or performed by others, in Customer’s sole discretion, and Supplier shall re-perform at no additional cost to Customer or shall reimburse Customer for all costs of performance by another.
6. INTELLECTUAL PROPERTY. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under these Terms or prepared by or on behalf of Supplier in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by Customer. Supplier agrees, and shall cause its personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Customer. To the extent that any of the Deliverables do not constitute a “work made for hire,” Supplier hereby irrevocably assigns, and shall cause their personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein.
7. REPRESENTATIONS AND WARRANTIES. Supplier represents and warrants that (i) all Goods provided and/or Services performed will comply with the descriptions and specifications as set out in this Order; (ii) all Goods provided are new and unused (unless refurbished Goods have been approved in writing by Customer) and will be free from defects in design, materials, workmanship and manufacture, be of satisfactory quality and fit for the purposes communicated by Customer or if not communicated by Customer fit for the purposes as can be reasonably deemed for a period of twelve (12) months from the later of either the date the Goods are delivered to Customer or acceptance by Customer (“Warranty Period”); (iii) all Services will be performed in a timely workmanlike and professional manner by employees or subcontractors of Supplier consistent with generally accepted industry standards using personnel having a level of skill commensurate with the requirements of the agreed upon scope of work, (iv) it has clear title to the Goods and that the Goods and Services shall be delivered free of liens or encumbrances; and (v) Supplier and its personnel will comply with all laws in connection with its performance under these Terms.  The foregoing warranties are in addition to all other warranties, express or implied, and shall survive the delivery, performance, inspection, acceptance or payment by Customer.  Customer’s inspection, test, approval, acceptance or use of any Goods will not relieve Supplier of any warranties specified herein or otherwise applicable.  If Customer submits a warranty claim during the Warranty Period (“Claim”), Customer will notify Supplier and may, at its sole option, and at Supplier’s expense: (i) require Supplier to repair or replace any defective or nonconforming Goods; (ii) return deficient or nonconforming Goods to Supplier for a full refund of amounts paid for those deficient or non-conforming Goods; (iii) re-perform the Services or any part thereof that fails to conform to Customer’s specifications; or (iv) provide a refund for the Services or any part thereof that fails to conform to Customer’s specifications.  Supplier warrants any replaced or repaired Goods for twelve (12) months.
8. TERMINATION. Customer may terminate the Order, in whole or in part, without liability, upon written notice to Supplier if Supplier fails to perform or otherwise materially breaches any term of this Order and such failure or breach is not remedied within seven (7) days of Customer’s notice to do so.  Customer may terminate this Order, in whole or in part and at its discretion, for its convenience upon thirty (30) days written notice to Supplier.  Customer’s sole liability and Supplier’s sole compensation for such termination for convenience shall be payment of the price of the Goods supplied and Services performed and accepted by Customer prior to the date of such termination, plus any reasonable expenses incurred by Supplier in terminating orders and work in progress, which claims for expenses must be submitted to Customer within sixty (60) days of the date of termination and shall be subject to audit by Customer.  Upon any termination hereunder, title to all equipment materials, work-in-progress, finished products, plans, drawings, specifications, information, special tooling, and any other item for which Supplier may submit a claim shall vest in Customer, and Supplier shall promptly deliver these items to Customer and take all necessary action to protect such property prior to such delivery.  Notwithstanding the termination or expiration of this Order, the terms of this Order that by their context, intent, and meaning are intended to survive the termination or expiration of this Order shall survive any termination or expiration of this Order.  If requested by Customer, Supplier shall provide, at a reasonable price, transition services to Customer to enable transition of the Services to another provider.
9. INDEPENDENT CONTRACTOR SERVICES. The Parties agree that Supplier is an independent contractor for all purposes, without express or implied authority to bind Customer by contract or otherwise.  Supplier is responsible for all costs and expenses incident to performing its obligations under this Order and shall provide its own supplies and equipment.
10. INDEMNITY. Supplier shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, successors, assigns, agents, and customers from and against any and all claims, actions, liabilities, damages, losses, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, and expenses (including legal fees) arising out of or in any way connected with the Goods provided and/or the Services performed under this Order including without limitation: (i) defective workmanship, quality of material or service, (ii) any claim by a third party alleging that Goods or Services, the results of such Services, or any other products or processes provided under this Order infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes; (iii) Supplier’s failure to comply with any applicable law, statute, rule or regulation, including without limitation, related to privacy and publicity; (iv) the negligence or willful misconduct of the Supplier, its agents or employees; (v) death or bodily injury to any person; (vi) damage or destruction to property, caused by, arising out of, connected with or resulting from the Goods and/or the acts or omissions of the Supplier, its agents, or subcontractors; or (vii) breach of any representation, warranty, covenant, or obligation under these Terms.  Should Customer’s use, or use by its employees, contractors, subcontractors or customers, of any Goods or Services purchased from Supplier under this Order be threatened by injunction or any legal proceeding, Supplier shall, at its sole cost and expense, either; (i) substitute fully equivalent non-infringing Goods; (ii) modify such Goods so that they no longer infringe but remain fully equivalent in functionality; (iii) obtain for Customer, its employees, contractors, subcontractors or customers the right to continue using such Goods; or (iv) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
11. INSURANCE. Supplier shall obtain and keep in force for one (1) year after the last delivery under this Order general comprehensive liability coverage covering each occurrence of bodily injury and property damage in the amount of not less than One Million Dollars ($1,000,000) (or any other amount Customer may indicate in this Order) combined single limit with special endorsements providing coverage for: (i) Products and Completed Operations Liability; (ii) Blanket Broad Form Vendor’s Liability; (iii) Blanket Contractual Liability; (iv) Waiver of Subrogation in favor of Customer; and (v) ABC Phones of North Carolina, Inc. listed as an additional insured.  If Services are performed under this Order on Customer’s premises, Supplier shall also obtain Premises-Operations, Personal Injury, and Independent Contractors Protective Liability endorsements, and shall further obtain Workers’ Compensation, Employer’s Liability and Automobile Liability Insurance coverage in amounts acceptable to Customer and/or the amount required by law in the state where the Services will be performed.  Except for Worker’s Compensation and Employer’s Liability, the insurance policies shall name Customer as an additional insured.  If requested, Supplier shall furnish Customer with a certificate evidencing the required insurance.
12. CONFIDENTIALITY. Supplier shall ensure that all proprietary and confidential information of Customer (“Confidential Information”) remains confidential..  Only those employees or agents of Supplier who have a need to know shall be provided any Confidential Information and Supplier shall use no less than reasonable care in preventing the unauthorized use or disclosure of Confidential Information.  Supplier shall not advertise or release any statement about this Order nor shall Supplier publicly identify Customer as a customer (except for its internal business purposes) without Customer’s prior written consent.
13. LIMITATION OF LIABILITY. In no event shall Customer be liable to Supplier for anticipated or actual lost profits, loss of business, loss of savings, loss of data or for any indirect, special, incidental or consequential damages however arising (in contract, tort or otherwise), even if Customer has been advised of the possibility of such damages.
14. COMPLIANCE WITH LAWS. Supplier shall comply fully with all applicable laws and regulations in the performance of this Order.
15. GOVERNING LAW AND JURISDICTION. This Order shall be governed by the laws of the State of North Carolina excluding any conflicts of law principles.  Any dispute or cause of action which arises under this Order shall be brought before a court of competent jurisdiction in the State of North Carolina, County of Wake. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NORTH CAROLINA LAW.
16. GENERAL. If any provision of this Order is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.  Any party’s delay or failure to exercise any of its rights under this Order shall not be deemed or construed to operate as a party’s waiver of such rights or any other rights under this Order.  All notices and other communications shall be in writing and addressed to ABC Phones of North Carolina, Inc. d/b/a Customer at 8510 Colonnade Center Drive, Suite 300, Raleigh, NC 27615 when delivered personally, sent by commercial courier with written verification or by certified mail.  Notices (except for breach or termination) may also be sent by email to VictraLegal@victra.com.  Notices to Supplier shall be delivered personally, sent by commercial carrier or by certified mail to the address provided by Supplier in this Order or to the Supplier authorized contact identified in this Order. The Parties may not amend these Terms except by written instrument signed by the Parties. The rights under these Terms are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. Supplier may not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under these Terms, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of Customer. Any purported assignment or delegation in violation of this Section shall be null and void.  Supplier’s acceptance of an Order, commencement of performance, shipment of Goods, or submission of an invoice constitutes Supplier’s acceptance of these Terms. Any additional or different terms proposed by Supplier in any quotation, acknowledgment, invoice, or other document are expressly rejected and shall be of no force or effect unless expressly agreed to in a written document signed by an authorized representative of Victra. In the event of a conflict, the following order of precedence applies: (1) a mutually executed written agreement expressly referencing these Terms; (2) the applicable Order; and (3) these Terms. Victra may revise these Terms from time to time by posting updated terms at https://victra.com/victra-general-purchase-order-terms-and-conditions/. The version of the Terms in effect as of the date an Order is issued (or, if no Order is issued, as of the date Supplier first performs Services or ships Goods) shall apply to that transaction. Continued performance or acceptance of Orders after updated Terms are posted constitutes acceptance of the updated Terms for future transactions.